United States v. Self (100 F. Supp. 3d 773, 2015)

ORDER

DAVID G. CAMPBELL, District Judge.

Movant Richard Larry Self filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. CVDoc. I. United States Magistrate Judge James F. Metcalf issued a report and recommendation (“R & R”) recommending that the motion be denied. CVDoc. 29 at 815. Movant filed an objection to the R & R on February 2, 2015. CVDoc. 34. For the reasons set forth below, the Court will accept the R & R and deny Movant’s motion.

I. Background.

On March 9, 2010, a grand jury indicted Movant on four counts of Possession of Child Pornography, with forfeiture allegations. CRDoc. 1. Movant was arrested on March 14, 2010, and the Court appointed trial counsel soon after. CRDocs. 5, 14, 19. Movant made four motions to continue trial, the last of which was filed on September 17, 2010. CRDocs. 20, 23, 26, 32. The Court granted all four motions and scheduled trial to-start November 17, 2010. CRDocs. 21, 25, 28, 41, 49.

On September 21, 2010, the government filed a superseding indictment charging Movant with three counts of Transportation of Child Pornography, three counts of Possession of Child Pornography, and forfeiture allegations. CRDoc. 35. On October 13, 2010, Movant’s counsel filed a motion to suppress evidence obtained from the search warrant issued January 27, 2010. CRDoc. 47. The motion was based on staleness and lack of probable cause. CRDoc. 47 at 6-10. The parties fully briefed the issue, and the Court denied Movant’s motion. CRDocs. 47, 56, 65, 69.

On November 10, 2010, one week before Movant’s trial date, Movant requested new counsel. CRDoc. 74; CVDoc. 34 at 37-38. Movant believed his attorney had failed to properly investigate his case (by not pursuing leads -Movant suggested or interviewing witnesses Movant claimed would discredit prosecution witnesses), did not believe he was innocent, and would not present him with an unbiased defense. After considering Movant’s complaints, the Court rejected the request, stating that based on the information Movant had provided, a different lawyer would not give Movant a better defense than the one current counsel was set to present. CRDoc. 74.

Trial proceeded as scheduled, and the jury found Movant guilty on all counts. Id.; CRDoc. 90. Counsel moved for a downward departure and variance at the sentencing. CRDoc. 93. The Court denied the request for an extension and Mov-ant was sentenced to concurrent terms of 135 months for each transportation charge and 120 months for each possession charge — an effective sentence of 135 months. CRDocs. 95, 97.

On appeal, Movant challenged the trial court’s denial of his motion to suppress, arguing that the search warrant was stale and insufficient to establish probable cause. CRDoc. 117. Movant also challenged his sentence as procedurally erroneous and substantively unreasonable. Id. The Ninth Circuit rejected Movant’s claims and affirmed his conviction and sentence. Id.

On July 29, 2013, Movant filed his pro se motion to vacate. CVDoc. 1. Magistrate Judge Metcalf issued his R & R on October 31, 2014. CVDoc. 29. Movant has filed an objection on Grounds One through Eight. CVDoc. 34.

II. Legal Standard.

Under § 2255, a person in custody may “move the court which imposed the sentence to vacate, set aside or correct the sentence” on the grounds that “the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a).

A party may file specific written objections to the R & R’s proposed findings and recommendations. Fed.R.Civ.P. 72(b); 28 U.S.C. § 636(b)(1)(G). The Court must undertake a de novo review of those portions of the R & R to which specific objections are made. See id.; Thomas v. Arn, 474 U.S. 140, 149, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir.2003). The Court may accept, reject, or modify, in whole or in part, the findings and recommendations made by the magistrate judge. Fed.R.Civ.P. 72(b); 28 U.S.C. § 636(b)(1).

In the context of ineffective assistance of counsel claims, “[j]udicial scrutiny of counsel’s performance must be highly deferential.” Strickland v. Wash ington, 466 U.S. 668, 689, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The Court must apply a strong presumption that counsel rendered adequate assistance and exercised reasonable professional judgment. Id. To prevail on a claim for ineffective assistance, Movant must show that “(1) his attorney’s performance was unreasonable under prevailing professional standards, and (2) a reasonable probability that but for counsel’s unprofessional errors, the results would have been different.” United States v. Blaylock, 20 F.3d 1458, 1465 (9th Cir.1994) (quoting Strickland, 466 U.S. at 687-94, 104 S.Ct. 2052). Strickland defines reasonable probability as “a probability sufficient to undermine confidence in the outcome.” Id.

III. Analysis.

1. Ground 1: Ineffective Assistance on Search Warrant.

Movant objects on Ground 1(a), asserting that Judge Metcalf misunderstood his claim; on Grounds 1(b) and (c), arguing that Counsel was ineffective by failing to challenge the search based on improper service of the warrant; and on Ground 1(d), arguing that counsel failed to challenge the illegal search and seizure of Movant’s person during the warrant’s execution. CVDoc. 34 at 2-9.

A.Ground 1(a).

Movant asserts that his Ground 1(a) claim was misunderstood as challenging “the staleness of the evidence in the probable cause.” Id. at 2. In clarifying his argument, Movant claims that trial counsel was ineffective because she failed to challenge the search warrant on the basis that it contained no new probable cause, and was an improper reissue of a previously voided warrant. Id. at 2-3 (citing Sgro v. United States, 287 U.S. 206, 53 S.Ct. 138, 77 L.Ed. 260 (1932)).

Judge Metcalf understood Movant’s position on Ground 1(a) — that the second search warrant was improper because it did not present new support for probable cause, and that a new probable cause statement should have been required for a valid warrant. CVDoc. 29 at 786-88. Judge Metcalf decided that Sgro v. United States, 287 U.S. 206, 53 S.Ct. 138, 77 L.Ed. 260 (1932), and the other cases relied on' by Movant do not stand for the proposition that every warrant must be accompanied by new affidavits or statements. Id. at 787. Rather, a warrant must simply be based on timely information. Id. The Court finds Judge Metcalfs analysis to be sound. See id. at 786-88. Movant failed to show that new affidavits and statements of probable cause were required for a valid search warrant, and trial counsel’s “failure to raise a meritless legal argument does not constitute ineffective assistance of counsel.” Baumann v. United States, 692 F.2d 565, 572 (9th Cir.1982).

B.Grounds 1(b) and (c).

In his objection on Grounds 1(b) and (c), Movant reasserts the same arguments of improper service he made in his motion to vacate. See CVDoc. 2 at 2-3; CVDoc. 21 at 3-4; CVDoc. 34 at 3-6. The Court agrees with the R & R’s analysis that a challenge to the search based on timing or lack of service would have been meritless, and failure to make the arguments was not ineffective assistance. CVDoc. 29 at 788-90.

C.Ground 1(d).

Movant’s objection on Ground 1(d) is somewhat unclear. See CVDoc. 34 at 6-9. In his motion to vacate, Movant argued that trial counsel should have challenged the search of his truck on the ground that agents improperly searched Movant’s person, improperly seized Movant’s effects, and improperly detained Movant without issuing a Miranda warning. CVDoc. 2 at 3-5; CVDoc. 21 at 4-6. Judge Met'eai? found that a challenge of the search by trial counsel on those grounds would have been meritless. CVDoc. 29 at 790-92. Further, Judge Metcalf noted that even if the court assumed the searches were improper, Movant failed to show how he was prejudiced by the search of his personal effects. Id. at 792. In his objection, Mov-ant states that he believed he was under arrest during his detention and that he need not show prejudice. CVDoc. 34 at 7-9.

The Court has reviewed the R & R’s treatment of Ground 1(d) and agrees that any challenge to the search of Movant’s person or to his detention would have been meritless. CVDoc. 29 at 787-89. Movant’s claim that he was not given a Miranda, warning lacks merit because Movant does not claim that he was interrogated or that any statement obtained in violation of Miranda was used against him at trial. See United States v. Kim, 292 F.3d 969, 976 (9th Cir.2002) (holding that a defendant is entitled to a Miranda warning when police questioning exceeds the scope of a Terry stop and becomes a custodial interrogation); see also United States v. Patane, 542 U.S. 630, 641, 124 S.Ct. 2620, 159 L.Ed.2d 667 (2004) (“Potential violations [of the Miranda rule] occur, if at all, only upon the admission of unwarned statements into evidence at trial.”).

2. Ground 2: Ineffective Assistance on Double Jeopardy.

Movant states in his objection that he stands by his original challenge that counsel was ineffective in failing to challenge Movant’s convictions based on double jeopardy. CVDoc. 34 at 9. Movant reasserts that: (1) the three possession of child pornography charges amounted to a single offense, and (2) his possession convictions were lesser included offenses of his transportation convictions. Id. at 9-10; CVDoc. 2 at 5-6; CVDoc. 21 at 6-8.

Applying 18 U.S.C. § 2252(a)(5)(B) and its reference to a defendant’s possession of “any” material containing child pornography, Judge Metcalf found that possession of multiple materials containing child pornography established multiple violations of the possession statute. CVDoc. 29 at 793. Because each possession charge in this case relied on separate material, multiple possession charges were appropriate and a challenge by trial counsel on this basis would have been futile. Id.

Judge Metcalf also determined that although possession of child pornography can be a lesser included offense of transportation of child pornography, Movant failed to show that the images used to support his possession charges were the same images used to support his transportation charges. Id. at 793. Movant therefore has failed to show that counsel was ineffective for failing to raise it.

The Court has reviewed Judge Metcalfs reasoning on these issues and finds it to be correct. Movant’s Ground 2 objection is without merit and will be denied.

3. Ground 3: Ineffective Assistance on Prosecutorial Misconduct.

Movant asserts that (1) trial counsel failed to challenge admission of prejudicial stories based on authenticity, and (2) the government failed to investigate fingerprint and DNA evidence that would have exonerated Movant. CVDoc. 34 at 10-15.

A. Failure to Challenge Stories Based on Authenticity.

On February 8, '2010, a search warrant was executed at Movant’s residence. CVDoc. 29 at 783. Along with other evidence, agents found several hundred pages of printed documents containing fictional narratives describing sexual conduct with children (the “stories”). Id.. Following notice that the government intended to use 'the stories at trial, Movant’s counsel argued the stories were unfairly prejudicial under Federal Rule of Evidence 404(b) and that the government possessed other evidence sufficient to show Movant had knowledge of the contents of the electronic storage media that contained child pornography. CRDoc. 57 at 7. The Court concluded that the stories were admissible only with redactions and other limitations. CRDoc. 70 at 5-7.

Movant contends that his counsel should have challenged the authenticity of the stories and the fact that the admitted stories involved a truck driver, a veteran, or a character named “Rick,” all of which might describe Movant. Given the vigorous arguments that were made by defense counsel regarding the stories and the limitations the Court placed on their admission at trial, including limiting the number of stories admitted, redacting portions of the stories, and limiting instructions to the jury, the Court cannot conclude that the evidence would have been any different had defense counsel made the arguments Movant suggests. Copies of the stories were found in Defendant’s home and on electronic storage media in his truck, facts the jury could take into account in deciding whether they viere authentic. The similarity of some of the stories to Movant was further evidence of their authenticity. The Court agrees with Judge Metcalfs conclusion that the additional .arguments suggested by Movant would have had no effect on admission of the redacted stories 'at trial. . CVDoc. 29 at 795-96. Because it is unlikely that the outcome would have been different;,, trial counsel was not ineffective for failing to make the arguments identified by Movant. See Strickland, 466 U.S. at 691-92, 104 S.Ct. 2052.

B. Failure to Investigate Fingerprint and DNA Evidence.,

Movant argues that trial cqunsel was ineffective for failing to assert a claim of prosecutorial misconduct based on the government’s failure to follow through on fingerprint and DNA evidence. CVDoc. 34 at 14-15. The R & R concluded that Movant “misapprehends the obligation of the prosecution,” and has overstated the persuasive effect that the DNÁ and fingerprint evidence would -have had. CVDoc. 29 at 796-98. The R &. R also notes that trial counsel may have had a tactical reason for not pursuing the evidence in question.. Id. at 797-98. Movant objects to these conclusions, and argues, that the persuasive effect of the testing, cannot be overstated because it would have rebutted testimony from his wife and supported Movant’s denial of ownership. CVDoc. 34 at 14-15. Additionally, Movant claims “there is no possible way for the magistrate court to constru [sic] [that trial counsel’s decision not t.o pursue testing was tactical], short of talking to the dense [sic] attorney.” CVDoc. 34 at 15. .

Movant’s objections aré without merit. The R & R’s statement that trial counsel’s decision nót to pursue testing may have been tactical is supported by the fact that trial counsel highlighted the lack of testing during trial, both on cross examination and in closing argument. CRDoc. 112 at 397-98; CRDoc. 113 at 441. Defense counsel might well have concluded that the ability to make these arguments at trial outweighed the potential benefits and risks of pushing' the government to complete the testing. Additionally, the government had no obligation to pursue the fingerprint and DNA analysis, and a prosecutorial misconduct charge on this basis would have been meritless. See Arizona v. Youngblood, 488 U.S. 51, 59, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988) (“[T]he defendant is free to argue to the finder of fact that a ... test might have been exculpatory, but the police do not have a constitutional duty to perform any particular tests.”); United States v. Polizzi, 801 F.2d 1543, 1553 (9th Cir.1986) (holding government has no duty to disclose exculpatory material that the prosecutor was neither aware of nor in possession of).

4. Ground 4: Failure to Object to Prior Bad Acts.

Movant asserts that trial counsel was deficient in failing to challenge admission of the fictional stories for lack of attribution. CVDoc. 34 at 16-19. He also claims trial counsel failed to investigate evidence that would have supported his denial of authorship.

As discussed in the R & R, trial counsel did oppose the stories’ admission under Federal Rule of Evidence 404(b) and 403, and renewed the objection again at trial to every story admitted. CVDoc. 29 at 799. Counsel also argued to the jury that the government could not attribute the stories to Movant, pointing out that multiple people had access to Movant’s residence, computer, and other media while Movant was away for extended periods of time as a truck driver. CRDoc. 113 at 442-44.

“[A] court must indulge a strong presumption that counsel’s conduct falls within a wide range of reasonable professional assistance” and “the defendant must overcome the presumption that ... the challenged action ‘might be considered sound trial strategy.’ ” Strickland, 466 U.S. at 689, 104 S.Ct. 2052 (citation omitted). “There are countless ways to provide effective assistance in any given case.” Id. Movant has failed to show trial counsel’s decisions as anything but reasonable trial strategy, and thus the Court will deny his Ground 4 objection.

5. Ground 5: Omitted Evidence.

Movant argues that trial counsel was ineffective because she did not introduce the following evidence: (1) AOL account time of access logs; (2) that Movant’s AOL account information and credit/debit card information were posted on a corkboard so others could pay bills; (3) a receipt showing that Movant’s wife purchased eight of the thumb drives that were found in Mov-ant’s truck, along with the bag they were found in; (4) evidence that Movant used a different computer than the one that was found to have child pornography; (5) evidence that four of the five computers seized were free of any child pornography; and (6) evidence to impeach Movant’s wife by showing she had a propensity to lie about Movant. CVDoc. 34 at 19-24. Further, Movant claims trial counsel should have called the following witnesses: James Holdgrafer, Laura Holdgrafer, Robin Du-fresne, and Sandy Maranda. Id. at 20-22. According to Movant, these witnesses would have testified that Movant did not take a computer with him on road trips unless his wife or daughters were accompanying him, Movant’s wife brought the computer on the road trip on which they were searched, Movant’s brother-in-law had access to the computers for over a month, and Movant’s wife used the thumb drives for pictures and music storage. Id.

Movant concedes that trial counsel did elicit testimony on cross-examination that others had access to his home, computer, thumb drives, truck, and AOL Account. Id. at 19-20. Movant also concedes that trial counsel elicited testimony from government experts that they could not place defendant at the computer, or say with certainty who plugged in the thumb drives to load or view files. Id.

Judge Metcalf reviewed each of Movant’s omitted evidence claims in great detail. CVDoc. 29 at 801-08. The Court has reviewed these ‘claims and Movant’s objections, and agrees with Judge Met-calfs analysis. Regarding witnesses not selected to testify, trial counsel had strong tactical reasons for not calling them. Id. at 803-05. With regard to evidence that Movant’s wife purchased the thumb drives and bag seized during the search, that four of five computers were free of child pornography, and that Movant did not frequently take a laptop with him on road trips, many of these facts were brought out on cross-examination and the remainder would not have altered the outcome of the trial. Id. at 803, 805-07. With regard to evidence that Movant’s wife was a perjurer, Federal Rule of Evidence 608(b) prevented use of the exhibits Movant suggests. Id. at 807.

These arguments are classic examples of second-guessing strategic decisions by trial counsel. The presumption in favor of trial counsel’s decisions precludes habeas relief on such a basis. Ground 5 lacks merit.

6. Ground 6: Errors in the Pre-Sen-tence Report.

Movant argues that trial counsel was ineffective because she failed to correct a number of inaccuracies in the pre-sentence report (“PSR”), did not allow Movant to interview with the probation officer, and never provided Movant with a copy of the PSR. CVDoc. 34 at 24-31; CVDoc. 2 at 17-18.

The R & R addressed each claim regarding the PSR and found they lacked merit. CVDoc. 29 at 808-11. The Court agrees. The Court found that Movant had no criminal history points, resulting in a criminal history category of I, and sentenced him at the bottom of the guideline range. CRDoc. 114 at 6, 11. The Court based its sentencing decision on Movant’s possession of hundreds of photographs and videos of child pornography, his perpetuation of the market for child pornography, his fixation on sexual abuse of children as reflected in many stories he wrote about abusing children, and his failure to accept responsibility. CRDoc. 114 at 10-11. Movant has not shown that the alleged errors in the PSR concerning his prior arrests and various allegations of sexual abuse had any effect on his sentence. See Strickland, 466 U.S. at 691, 104 S.Ct. 2052 (“An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.”).

Nor can the Court conclude that trial counsel was ineffective when she recommended that Movant not have an interview with the probation officer who was preparing the PSR. See CVDoc. 29 at 809-11. Trial counsel may well have concluded that Defendant’s demeanor and lack of contrition would result in a less favorable recommendation. Additionally, Movant has failed to show how the interview would have affected the outcome of his sentencing. See Strickland, 466 U.S at 691-92, 104 S.Ct. 2052.

Lastly, Movant claims that trial counsel never provided him with a copy of the PSR or reviewed it with him. This claim is significantly undermined, however, by the fact that Movant referred to the “Probation Report” in his pre-sentencing letter to the Court, commenting on some of the matters raised in this habeas petition. CRDoc. 96 at 2. Nor did Movant contradict his counsel’s specific statement at the sentencing hearing that she had reviewed the PSR with him. Id. at 44; CRDoc. 114 at 3. Ground 6 lacks merit.

7. Ground 7: Evidence of Third Party Guilt.

Movant argues that counsel was ineffective by failing to (a) present evidence from the forensic expert that someone else could have committed the crime; (b) pursue discovery and disclosures from the prosecution; (c) investigate whether another person authored the fictional stories; (d) object to the stories; (e) call witnesses for the defense; (f) present a defense; (g) investigate information that Movant did not own a computer until May 2008, that the other computers were clean and available for others to use, and that the program used to write the stories was not on his computer; (h) show that the computers could not have been placed on the bottom bunk of the truck at the time of the search; (i) impeach the government’s witnesses; and (j) object to references to Movant’s ex-wife as such at trial, even though they remained married at that time. CVDoc. 34 at 31-37; CVDoc. 29 at 811.

Judge Metcalf found arguments (a), (b), (c), (g), (h), and (j) to be unsupported, and explained why. CVDoc. 29 at 811-12. He found arguments (d), (e), (f) and (i) to be repetitive of earlier grounds already dismissed. Id. at 812-13. Movant objects to these conclusions, sometimes citing evidence and often with only conclusory assertions. CVDoc. 34 at 31-33. The Court again concludes, however, that Movant is second-guessing his trial counsel’s strategic decisions on how best to try this case. Although the Court does not doubt that Movant genuinely believes a better defense could have been mounted, that is not the test for ineffective assistance. Movant must show that his attorney’s performance was unreasonable under prevailing professional standards, and, but for counsel’s unprofessional errors, the results of his trial would have been different. Strickland, 466 U.S. at 687-94, 104 S.Ct. 2052. The “highly deferential” approach the Court must take when evaluating counsel’s performance precludes the kind of issue-by-issue criticism Movant levels in Ground 7. Id. at 689, 104 S.Ct. 2052.

After a de novo review, the Court finds Judge Metcalfs discussion of the arguments raised in Ground 7 to be correct. CVDoc. 29 at 811-13. The Court will accept the R & R’s findings and deny Mov-ant’s Ground 7 objections.

8. Ground 8: Abuse of Discretion.

Movant asserts that (a) the Court abused its discretion by refusing Movant’s pretrial request for new counsel, and (b) counsel was ineffective “for not challenging the lesser included offenses, and greater offense.” CVDoc. 34 at 37-39.

Judge Metcalf properly notes that “to the extent that Movant might have intended to assert direct challenges on these decisions of the trial court, the claims would be procedurally defaulted for failing to raise them on direct appeal.” CVDoc. 29 at 813; see Massaro v. United States, 538 U.S. 500, 504, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003) (“[Cjlaims not raised on direct appeal may not be raised on collateral review unless the petitioner shows cause and prejudice”). Judge Met-calf decided that Movant’s first claim was not procedurally defaulted because Movant was not directly claiming that the Court abused its discretion, but rather that trial counsel was ineffective for failing to object to the Court’s decision as an abuse of discretion. CVDoc. 29 at 813. Here, Mov-ant’s objection makes no such distinction. See CVDoc. 34 at 41 (“Defendant believes he has shown abuse of discretion of the Court, in refusing defendant substitute counsel.”). Accordingly, Ground 8(a) is procedurally defaulted and will be denied.

Movant’s argument in Ground 8(b) regarding the lesser included offenses is the same argument made in Ground 2 and will be denied for the reasons discussed above.

IT IS ORDERED:

1. The R & R (CVDoc. 29) is accepted.

2. The motion to vacate sentence (CVDoc. 1) is denied.

3. The Clerk is directed to terminate this action.

Report & Recommendation on Motion to Vacate, Set Aside Correct Sentence

JAMES F. METCALF, United States Magistrate Judge.

I. MATTER UNDER CONSIDERATION

Movant, following his conviction in the United States District Court for the District of Arizona, filed on July 29, 2013 a Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 (Doc. 1) and Memorandum in Support (Doc. 2). On March 19, 2014, Respondent filed its Response (Doc. 15). Movant filed a Reply on June 16, 2014 (Doc. 21). On September 29, 2014, Petitioner re-filed (Doc. 24) his Memorandum in Support of his Petition because of a defect in the electronically filed version.

The Movant’s Motion is now ripe for consideration. Accordingly, the undersigned makes the following proposed findings of fact, report, and recommendation pursuant to Rule 10, Rules Governing Section 2255 Cases, Rule 72(b), Federal Rules of Civil Procedure, 28 U.S.C. § 636(b) and Rule 72.2(a)(2), Local Rules of Civil Procedure.

II. RELEVANT FACTUAL & PROCEDURAL BACKGROUND

A. FACTUAL BACKGROUND

In his Motion to Suppress, Movant de-. scribed the factual background as follows:

This investigation began on November 5, 2008, when the Child Exploitation Section of the ICE (Immigration and Customs Enforcement) Cyber Crimes Center received information regarding a website containing child pornography, known as DreamZone. ICE agents verified that the website contained pornography and that the website could be accessed by “members” to the website for a monthly fee. ICE agents accessed this site for a monthly fee of $99.00 after an agent completed the transaction with an undercover identity and credit card. The undercover agent received a user name and password, accessed the website, and found child pornography within the site. ICE then obtained the web access logs from November 11, 2008, through November 20, 2008, and matched IP addresses with specific image files that were accessed from each IP address. Pursuant to this search warrant, ICE identified the e-mail address of richardrimrock@AOL.com (“Rimrock IP”) as one of the IP addresses that accessed the DreamZone website on November 18, 2008. The logs further showed that on this date the Rimrock IP downloaded numerous images of child pornography from the website.

Pursuant to further subpoenas to AOL, ICE determined that, as of January 30, 2009, the account holder for the Rimrock IP was Richard Self at a P.O. Box in Rimrock, Arizona, and that the relevant phone number was assigned to Richard Self through a Verizon account that had been effective since April 15, 2008, with the same P.O. Box in Rim-rock. In May of 2009, ICE reviewed the motor vehicle database for records of Richard Self and identified a residential address on Desert Pine Road in Rim-rock, Arizona.

On November 15, 2009, ICE agents conducted surveillance at the Desert Pine address and observed a motor vehicle that was registered to Mr. Selfiat the Desert Pine address. In December of 2009, ICE obtained another subpoena for the AOL account holder information, and it was the same as the January 2009 information for Mr. Self.

Based on this information alone, the ICE agent avowed that he believed Richard Self spent money to purchase a membership to a website devoted to child pornography and thus that Mr. Self has a sexual interest in children. Further, the application for the search warrant states that the agent believes that Mr. Self accessed and downloaded child pornography on November 18, 2010, from the DreamZone website. Thus, the agent concluded there was probable cause to believe that there was child pornography at the residence.

The application for the search warrant also contains a boilerplate section regarding “common characteristics” of persons who collect child pornography. Among other things, the application states that “[t]hese collections [of child pornography] are often maintained for several years and are kept close by, usually at the collector’s residence, to enable the individual to view the collection, which is valued highly.”

The search warrant was executed at the residence on February 8, 2010. Defendant was not present at his residence during the execution of the warrant. Mr. Selfs step-son, who lived next door and allowed the agents into the residence, told the agents that Mr. Self had left on February 6, 2010, with his wife on a business trip driving his company’s semi-tractor/truck to Florida. At the residence, agents found computer generated printouts that contained photographs of child pornography. Also, agents found several hundred pages of print documents containing narratives describing sexual conduct with children. Agents also found documents indicating the purchase of a Verizon wireless mobile broadband device, but did not find the broadband device or a laptop computer. Agents did find two older-model tower computers that did not appear to contain any child pornography but did contain website advertising banners related to child pornography sites.

Based on the above information, another search warrant was obtained to search the semi-tractor/truck that Mr. Self was driving. • This warrant was executed on February 18, 2010, pursuant to a traffic stop of the vehicle. Mr. Self and his wife were in the vehicle. During the search of the vehicle, the agents found two laptops, one of which it was later determined contained images of child pornography. The agents also found several thumb drives and other electronic material containing child pornography. An indictment was obtained against Mr. Self for possession of child pornography, and he was arrested on March 14, 2009, pursuant to a traffic stop. The agents searched the vehicle and found electronic material that later was determined to contain documents that contained narratives describing sexual activity with children, similar to the documents obtained from Mr. Selfs residence.

(CR-10-8036-PCT-DGC Doc. 47 at 3-6 (citations omitted).) (Documents filed in the criminal case, CR-10-8036-PCT-DGC, are referenced hereinafter as “CR Doc. -”)

13. PROCEEDINGS AT TRIAL

On March 9, 2010, Movant was indicted (CR Doc. 1) in the District of Arizona case CR-10-8036-PCT-DGC on four counts of Possession of Child Pornography, with forfeiture allegations. Counsel was appointed. (CR Doc. 5, M.E. 3/15/10.)

On September 21, 2010, a Superseding Indictment was filed (CR Doc. 35), charging Movant with 3 counts of Transportation of Child Pornography, 3 counts of Possession of Child Pornography, and forfeiture allegations.

Counsel filed a Motion to Suppress (CR Doc. 47) seeking to suppress evidence seized at Movant’s home on January 27, 2010 for lack of probable cause to support the warrant, and evidence seized in the ensuing searches of his truck and car, as fruits of the poisonous tree. The motion was denied. (CR Doc. 69, Order 11/12/10.)

Movant proceeded to a jury trial on November 17, 2010. (CR Doc. 78, M.E. 11/17/10.) He was found guilty as charged. (CR Doc. 90, Verdict.)

Counsel moved for a downward depart and variances in sentencing. (CR Doc. 93.) The motion was denied, and on March 14, 2011 Movant was sentenced to concurrent terms of 135 months oh the transportation charges, and concurrent terms of 120 months on the possession charges, for an effective sentence of 135 months. (CR Doc. 95, M.E. 3/14/11; CR Doc. 97, Judgment.)

C. PROCEEDINGS ON DIRECT APPEAL

Movant filed a direct appeal, appealing the denial of his motion to suppress on the basis that the lapse of time between the first lead and the search warrant was so long as to render the information stale and prevent a finding of probable cause. Mov-ant also challenged his sentence. The Ninth Circuit Court of Appeals rejected his arguments, and affirmed the convictions and sentences. (CR Doc. 117, Memorandum Decision.)

D. PRESENT FEDERAL HABEAS PROCEEDINGS

Motion — Movant commenced the current case by filing Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 on July 29, 2013 (Doc. 1). Movant asserts the following eight grounds for relief:

(1) Movant’s counsel was ineffective in failing to investigate the validity of three search warrants;

(2) Movant’s counsel was ineffective in allowing Movant to be indicted, tried, and convicted in violation of Movant’s right to be free from double jeopardy;

(3) Movant’s counsel was ineffective for failing to challenge prosecutorial misconduct;

(4) Movant’s counsel was ineffective for failing to object to irrelevant evidence of prior bad acts;

(5) Movant’s counsel was ineffective when she failed to introduce evidence that others lived in Movant’s household, had access to Movant’s AOL account and use of the computer, and that of the five computers seized, “only one was dirty”;

(6) Movant’s counsel was ineffective because counsel refused to let the probation officer interview Movant, members of Movant’s family, or any of Movant’s friends;

(7) Movant’s counsel was ineffective by failing to present evidence that someone else could have committed the crime; and

(8) The Court abused its discretion by failing to resolve the conflict between Movant and Movant’s counsel and for not appointing new counsel.

(Doc. 4, Service Order.)

Response-On March 19, 2014, Respondent filed its Response (Doc. 15). Respondent argues that the first seven grounds, asserting ineffective assistance, are without merit. Respondent argues that Ground Eight is procedurally defaulted for failing to raise it on direct appeal.

Reply-Movant filed a Reply on June 16, 2014 (Doc. 21), addressing the merits of his ineffective assistance claims, and arguing that his Ground 8 is not procedurally defaulted.

Supplement — Upon reviewing the filed record, the Court observed that the electronically filed version of Movant’s Memorandum in Support (Doc. 2) had become partially unreadable, and no paper versions were available. Movant was directed to re-file his Memorandum in Support and attached exhibits. (Order 9/15/14, Doc. 23.) On September 29, 2014, Movant complied and again filed his Memorandum in Support and exhibits (Doc. 24).

III. APPLICATION OF LAW TO FACTS

A. GROUNDS 1-8: INEFFECTIVE ASSISTANCE CLAIMS

Generally, claims of ineffective assistance of counsel are analyzed pursuant to Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In order to prevail on such a claim, Petitioner must show: (1) deficient performance-counsel’s representation fell below the objective standard for reasonableness; and (2) prejudice — there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Id. at 687-88, 104 S.Ct. 2052. Although the petitioner must prove both elements, a court may reject his claim upon finding either that counsel’s performance was reasonable or that the claimed error was not prejudicial. Id. at 697, 104 S.Ct. 2052.

1. Ground 1: Ineffective Assistance re Search Warrant

In his Ground 1, Movant asserts that counsel was ineffective in failing to adequately investigate the validity of the three search warrants. (Motion, Doc. 1 at 5; Memorandum, Doc. 2 at 1-4.) Movant asserts four specific defects in the searches and warrants, addressed hereinafter as subparts (a) through (d). Respondent argues that defense counsel adequately investigated, and filed a motion to suppress the evidence seized during the searches.

a. Ground 1(a): I AC re No New Probable Cause to Search Home

Movant argues that trial counsel should have challenged the search of the home on the basis that there was no new probable cause asserted to support the second warrant to search the home which was issued after the first warrant expired unserved. Respondent argues that the motion to suppress addressed the staleness and lack of probable cause to support the search of the home, and that no new statement of probable cause was required to support the warrant. Moreover, Respondent argues this issue was addressed by the Ninth Circuit in Movant’s direct appeal. (Response, Doc. 15 at 16-17.) Movant replies that the second warrant amounted to an improper reissuance of the first warrant based upon a stale statement of probable cause. (Reply, Doc. 21 at 2-3.)

Respondent appears to conflate the staleness of the information in the probable cause statement used to support q warrant, with the staleness of the statement or affidavit itself. The former was addressed by the Ninth Circuit in Mov-ant’s direct appeal (and may not be revisited in this proceeding). (CR Doc. 117, Mem. Dec. at 4.) The latter is the argument Movant now makes.

In support of his contention that a new probable cause statement was required, Petitioner cites to U.S. v. Lacy, 119 F.3d 742 (9th Cir.1997), U.S. v. Grubbs, 547 U.S. 90, 126 S.Ct. 1494, 164 L.Ed.2d 195 (2006), and Sgro v. U.S., 287 U.S. 206, 53 S.Ct. 138, 77 L.Ed. 260 (1932). Nothing in these cases suggests that a new affidavit must be submitted when an expired warrant is being reissued. These cases simply stand for the proposition that affidavits in support of warrant requests “must be based on facts ‘ ‘so closely related to the time of the issue of the warrant as to justify a finding of probable cause at that time.’ ’ ” U.S. v. Lacy, 119 F.3d 742, 745 (9th Cir.1997) (indirectly quoting Sgro, 287 U.S. at 210, 53 S.Ct. 138). At best, Sgro held that an expired warrant may not simply be reissued without a new finding of probable cause, based upon timely affidavits.

The issue of a second warrant is essentially a new proceeding which must have adequate support ... The statute in terms requires him before issuing the warrant to take proof of probable cause. This he must do by examining on oath the complainant and his witness and requiring their affidavits or depositions. The proof supplied must have appropriate relation to the application for the new warrant and must speak as of the time of the issue of that warrant. The commissioner has no authority to rely on affidavits which have sole relation to a different time and have not been brought down to date or supplemented so that they can be deemed to disclose grounds existing when the new warrant is issued.

287 U.S. at 211, 53 S.Ct. 138. Thus, Sgro did not mandate new affidavits or statements, merely timely information.

Moreover, Sgro did not establish any time limit on when the affidavits have come to “have sole relation to a different time.” In Lacy, the court observed that such a determination is a fact specific inquiry.

However, “[t]he mere lapse of substantial amounts of time is not controlling in a question of staleness.” “We evaluate staleness in light of the particular facts of the case and the nature of the criminal activity and property sought.” The information offered in support of the application for a search warrant is not stale if “there is sufficient basis to believe, based on a continuing pattern or other good reasons, that the items to be seized are still on the premises.”

Lacy, 119 F.3d at 745-46 (internal citations omitted). Of course, in this case, the question whether the information was stale has been decided by the Ninth Circuit on Mov-ant’s direct appeal.

Movant fails to establish new affidavits or statements of probable cause were mandatory, despite the freshness of the information contained in the original. The undersigned has found no such requirement.

Thus, the undersigned concludes that an attack based on the reliance on the same affidavits in issuing the second warrant would have been without merit. “The failure to raise a meritless legal argument does not constitute ineffective assistance of counsel.” Baumann v. United States, 692 F.2d 565, 572 (9th Cir.1982).

Accordingly, Ground 1(a) is without merit.

b. Ground 1(b): I AC re Warrant on Home Not Properly Served

Movant argues that trial counsel should have challenged the search of the home on the basis that the search warrant for the home was not properly served because the attachments and affidavit were not served, and the warrant was not served at the outset of the search on his son-in-law, the caretaker of the property. Respondent argues that presentation of the warrant is not required at the outset of the search, and that the affidavit or other supporting exhibits need not be presented at all. (Response, Doc. 15 at 17-18.) Respondent further argues that a warrant need not be served on a non-occupant caretaker when a residence is unoccupied at the time the warrant is executed, and that in any event copies were left at the home, and may have been shown to the son-in-law before entry was gained. (Id. at 18, and n. 7.) Movant replies that it is unclear whether service of the warrant is required. (Reply, Doc. 21 at 3-4.)

In support of his argument that service of the warrant at the outset of the search is required, Movant relies upon U.S. v. Gantt, 194 F.3d 987 (9th Cir.1999), U.S. v. Hector, 474 F.3d 1150, 1154 (9th Cir.2007), and the separate opinion of Justices Souter, Stevens and Ginsburg in U.S. v. Grubbs, 547 U.S. 90, 99, 126 S.Ct. 1494, 164 L.Ed.2d 195 (2006). (Reply, Doc. 21 at 3-4.)

In Gantt, the Ninth Circuit held that Federal Rule of Criminal Procedure 41(d) (now at Fed.R.Crim.P. 41(f)) required that a search warrant be served at the outset of a search. 194 F.3d at 1001-1002. Seven years later, the majority opinion in Grubbs appeared to have rejected that holding:

In fact, however, neither the Fourth Amendment nor Federal Rule of Criminal Procedure 41 imposes such a requirement. “The absence of a constitutional requirement that the warrant be exhibited at the outset of the search, or indeed until the search has ended, is ... evidence that the requirement of particular description does not protect an interest in monitoring searches.” The Constitution protects property owners not by giving them license to engage the police in a debate over the basis for the warrant, but by interposing, ex ante, the “deliberate, impartial judgment of a judicial officer ... between the citizen and the police,” and by providing, ex post, a right to suppress evidence improperly obtained and a cause of action for damages.

Grubbs, 547 U.S. at 99, 126 S.Ct. 1494.

Movant suggests that the special concurrence in Grubbs leaves the question open. And indeed, Justice Souter asserted that prior decisions of the Court left open the question whether there was a “right of an owner to demand to see a copy of the warrant before making way for the police,” “and it remains undetermined today.” 547 U.S. at 101, 126 S.Ct. 1494. Indeed, in U.S. v. Hector, the Ninth Circuit addressed the decision in Grubbs, and concluded: “It is not clear whether [Grubbs] overrules the Ninth Circuit’s precedent on the requirement to present a copy of the warrant to the owner of the premises at the time of the search.” 474 F.3d 1150, 1154 (9th Cir.2007). But see U.S. v. Miller, 2013 WL 4805616, *5 (D.Ariz.2013) (report and recommendation concluding that Grubbs overrules Gantt) (issue avoided in Order modifying, 2013 WL 4026851, *3 (D.Ariz.2013)). At a minimum, the Ninth Circuit has recognized the Grubbs decision effectively reduces the “legitimate interest served by the presentation of a warrant” to be “heading] off breaches of the peace by dispelling any suspicion that the search is illegitimate.” U.S. v. Hector, 474 F.3d 1150, 1155 (9th Cir.2007). That interest is not affected when a search warrant is executed when the premises are vacant.

Movant also complains that the affidavit and other attachments were not included with the copy of the warrant eventually left at the premises. However, Rule 41 does not mandate the delivery of anything other than the warrant and a receipt for the property taken. There is no “constitutional mandate that an executing officer possess or exhibit the affidavit or any other document incorporated into the warrant at the time of the search in order for the warrant to be valid.” U.S. v. Hurwitz, 459 F.3d 463, 472 (4th Cir.2006). See also Baranski v. Fifteen Unknown Agents of Bureau of Alcohol, Tobacco and Firearms, 452 F.3d 433, 444 (6th Cir.2006) (no constitutional requirement or requirement under Rule 41 to leave incorporated affidavits, etc.).

Even if there were some basis to assert an obligation to serve the warrant and/or the affidavits or attachments, a motion to suppress founded upon such a service requirement would have been futile for two reasons. First, even when applying Gantt, the Ninth Circuit has held that suppression for violations of Rule 41 are only appropriate where:

1) the violation rises to a “constitutional magnitude;” 2) the defendant was prejudiced, in the sense that the search would not have occurred or would not have been so abrasive if law enforcement had followed the Rule; or 3) officers acted in “intentional and deliberate disregard” of a provision in the Rule.

U.S. v. Williamson, 439 F.3d 1125, 1133 (9th Cir.2006). Grubbs establishes that there is no violation of a constitutional magnitude. Petitioner has not proffered any prejudice in the form of the search resulting from the failure to serve the warrant at the outset. And, there is no indication that the officers acted deliberately in disregard of the rule. See e.g. Williamson, 439 F.3d at 1133-1134 (failure to serve not deliberate violation, even though intentional, when based on misunderstanding of requirement).

Second, Movant was not present when the warrant was executed, and thus cannot complain of the lack of service of the warrant. “Just as a person who is somewhere else cannot benefit from the ‘assurance’ provided by the showing of a warrant, an absent person has no present stake in the contemporaneous opportunity to monitor the search for compliance with the warrant. Thus the interest in the ‘notice’ that showing a warrant provides, likewise, does not run to someone who is not there and who cannot exercise that option.” U.S. v. Silva, 247 F.3d 1051, 1059 (9th Cir.2001).

Accordingly, any attempt to mount challenges to the timing or lack of service of the warrant or its attachments, supporting affidavits, etc. would have been futile, and failure to do so would not have been ineffective assistance. Baumann, 692 F.2d at 572.

Therefore, Ground 1(b) is without merit.

c.Ground 1(c): IAC re Warrant on Truck Not Properly Served

Movant argues that trial counsel should have challenged the search of the truck on the basis that the search warrant for the truck was not properly served because the attachments and affidavit were not served, and the serving agent refused to provide a copy of the warrant at the outset of the search.

As discussed hereinabove, with regard to the execution of the warrant on Mov-ant’s home (with the exception of the distinction that Movant was present when the vehicle was searched), any argument based upon the timing or lack of delivery of the warrant to search the truck would be without merit. The fact of Movant’s presence would give him standing to mount the objection, but even if Gantt survives Grubbs, Movant fails to establish a constitutional violation (and cannot under Grubbs), asserts no prejudice, and fails to proffer anything to establish a deliberate violation of the Rule. Accordingly, this claim would also be without merit, and cannot support a claim of ineffective assistance. Baumann, 692 F.2d at 572.

Therefore, Ground 1(c) is without merit.

d.Ground 1(d): IAC re Improper Search and Seizure of Movant and Wife

Movant argues that trial counsel should have challenged the search of his truck on the basis that Movant and his wife were searched, his effects were seized, and they were locked in a law enforcement vehicle during the search of his vehicle, all without Miranda warnings, even though the warrant did not extend to them or their effects. Respondent argues that the detention of occupants during a search is permitted, and no Miranda warnings are required. Respondent argues there is no evidence that Movant was searched, he cannot complain of the search of his wife, and no evidence from such searches was presented at trial, precluding a finding of prejudice. (Response, Doc. 15 at 18-19.) Movant replies that the authorities relied on by Respondent with regard to the detention and ensuing search are distinguishable on the basis that the warrants were for evidence, not contraband, and that the searches of Petitioner’s effects did not occur until the conclusion of the search of the vehicle. (Reply, Doc. 21 at 4-6.)

Movant’s Wi/e-Movant has no standing to complain about the detention and search of his wife. “Fourth Amendment rights are personal rights which ... may not be vicariously asserted ... No rights of the victim of an illegal search are at stake when the evidence is offered against some other party.” Alderman v. U.S., 394 U.S. 165, 174, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969). Consequently, any challenges by counsel on this point would have been without merit.

Detention-Movant attempts to distinguish cases relied upon by Respondents, e.g. Michigan v. Summers, 452 U.S. 692, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981), to justify detention during a search. He does so on the basis that the eases cited deal with searches for contraband, while the search of Movant was simply for evidence.

In a footnote, the Summers Court indicated they did “not decide whether the same result would be justified if the search warrant merely authorized a search for evidence.” 452 U.S. at 705, n. 20, 101 S.Ct. 2587. In Muehler v. Mena, 544 U.S. 93, 125 S.Ct. 1465, 161 L.Ed.2d 299 (2005), however, the Court applied Summers where the search was for “deadly weapons and evidence of gang membership.” Id. at 94-95, 125 S.Ct. 1465. Moreover, this 'contraband/evidence distinction was explicitly rejected by the Ninth Circuit in Dawson v. City of Seattle, 435 F.3d 1054 (2006). “Thus, the doctrine of Michigan v. Summers, permitting police officers to detain individuals during a search, and the principle of Muehler, holding that the authority to detain incident to search is categorical, apply to all searches upon probable cause, not just to searches for contraband.” Dawson, 435 F.3d at 1066.

Even assuming that this remained a significant distinction, Movant’s factual premise is flawed. Here, the warrant to search the vehicle included not only evidentiary types of things (correspondence, records, etc.), but “images of child pornography and files containing images of child pornography.” (CR Doc. 47, Mot. to Supp. at Exhibit B, Warrant, at Attachment B, at 56.) Such images would be contraband the same as the narcotics being searched for in Summers.

Accordingly, any challenge based upon the detention would have been without merit.

Miranda Warnings-Movant complains that he was not given Miranda warnings. Respondent properly argues that Miranda only applies to “custodial interrogation”, but makes the logical jump that Movant’s Summers detention during the search did not require the warnings. (Response, Doc. 15 at 19.) However, in U.S. v. Kim, 292 F.3d 969 (9th Cir.2002) the court explicitly rejected an argument by the government that the principles of Summers “support the conclusion that police officers executing a search warrant need not give Miranda warnings to an individual detained and questioned during a search.” Id. at 976.

The police did not interrogate Summers during the detention. If they had asked questions going beyond a brief Terry-type inquiry, see Terry v. Ohio, 392 U.S. 1, 29, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (permitting a brief stop and inquiry that are “reasonably related in scope to the justification for their initiation”), Summers would, it appears, have been entitled to Miranda warnings.

Kim, 292 F.3d at 976. The Kim court went on to conclude that the detention in that case had morphed into a custodial interrogation which required Miranda warnings.

Nonetheless, here Movant makes no assertions that any interrogation ensued. (See e.g. Memorandum, Doc. 2 at 3-4.) Nor does Movant suggest that any statements were made by' him while he was detained, nor that any such statements were entered into evidence against him. (Id.)

“Our cases also make clear the related point that a mere failure to give Miranda warnings does not, by itself, violate a suspect’s constitutional rights or even the Miranda rule.” U.S. v. Patane, 542 U.S. 630, 641, 124 S.Ct. 2620, 159 L.Ed.2d 667 (2004). “Potential violations occur, if at all, only upon the admission of unwarned statements into evidence at trial.” Id.

Consequently, any challenge based upon the lack of Miranda warnings would have been without merit.

Search of Personal Effects — Finally, Movant complains that he was searched as part of the search of the vehicle. However, “police officers with probable cause to search a car may inspect passengers’ belongings found in the car that are capable of concealing the object of the search.” Wyoming v. Houghton, 526 U.S. 295, 307, 119 S.Ct. 1297, 143 L.Ed.2d 408 (1999). Here, the categories of objects being searched for, e.g. passwords, encryption keys, etc. (see CR Doc. 47, Mot. to Supp. at Exhibit B, Warrant, at Attachment B, at 60), could easily be concealed in a pocket, wallet, etc,

Moreover, even assuming that the searches were prohibited, Movant makes no suggestion that any evidence used at trial was obtained during or derived from the search of his person, wallet, etc. as opposed to the search of the vehicle.

Consequently, any challenge based upon the search of Movant and his personal effects would have been without merit.

f. Summary re Ground 1 — Movant fails to show that counsel performed defi-ciently in challenging the various searches, warrants, etc. Accordingly, Ground 1 is without merit and must be denied.

2. Ground 2: Ineffective Assistance re Double Jeopardy

In his Ground 2, Movant alleges that counsel was ineffective in allowing Movant to be indicted, tried, and convicted in violation of Movant’s right to be free from double jeopardy. Movant’s theory is that possession is a lesser included offense of transportation, and thus he could not properly have been convicted of both types of offenses. Respondent argues that the possession charges were not lesser included offenses of the transportation offenses because the images in the three possession charges were different than the images in the three transportation charges. (Answer, Doc. 15 at 20.) Movant replies that simultaneous possession of more than one image may only result in one conviction, citing U.S. v. Polouizzi, 564 F.3d 142 (2nd Cir.2009) and U.S. v. Chiaradio, 684 F.3d 265, 279 (1st Cir.2012). In support of his contention that possession is the lesser included offense of transportation he cites U.S. v. Kennedy, 643 F.3d 1251 (9th Cir. 2011) and U.S. v. Davenport, 519 F.3d 940 (9th Cir.2008). (Reply, Doc. 21 at 6-8.)

Multiple Possession Charges — Movant argues that the three possession charges amounted to a single offense, citing Polou-izzi and Chiaradio.

In Polouizzi, the defendant was convicted of violations of 18 U.S.C. § 2252(a)(4)(B). That statute proscribes the possession of “1 or more books, magazines, periodicals, films, video tapes, or other matter which contain any visual depiction” of child pornography. (Emphasis added.) The Polouizzi court concluded that this construction made the focus on the possession of the matter which contained any number of images, and thus a single book or other repository containing multiple images would only amount to one violation. Moreover, because it referred to “1 or more,” then “a person who simultaneously possesses multiple books, magazines, periodicals, films, video tapes, or other matter containing a visual depiction of child pornography [is subject] to only one conviction under 18 U.S.C. § 2252(a)(4)(B).” 564 F.3d at 155. Similarly, the Ninth Circuit had concluded many years before that under § 2252(a)(4)(B) “the ‘matter’ is the physical medium that contains the visual depiction — in this case, the hard drive of Lacy’s computer and the disks found in his apartment.” U.S. v. Lacy, 119 F.3d 742, 748 (9th Cir.1997).

But, here Movant’s convictions for possession were under 18 U.S.C. § 2252A(a)(5)(B), not § 2252A(a)(4)(B). (CR Doc. 97, Judgment.) This provision proscribes possession of “any book, magazine, periodical, film, videotape, computer disk, or any other material that contains an image of child pornography.” 18 U.S.C. § 2252A(a)(5)(B) (emphasis added). In U.S. v. Hinkeldey, the Eight Circuit relied upon that very distinction (“1 or more” vs. “any”) to distinguish Polouizzi in a plain error analysis applying § 2252A(a)(5)(B). 626 F.3d 1010, 1014 (8th Cir.2010). Similarly, in U.S. v. Chiar-adio, 684 F.3d 265 (1st Cir.2012), upon which Movant relies, the First Circuit distinguished Polouizzi on the same basis.

With respect to possession offenses, section 2252A(a)(5)(B) prohibits knowingly possessing “any book, magazine, periodical, film, videotape, computer disk, or any other material that contains an image of child pornography.” 18 U.S.C. § 2252A(a)(5)(B) (emphasis supplied). The use of the word “any” contrasts sharply with section 2252(a)(4)(B), which criminalizes possessing “one' or more” matters containing any image. Id. § 2252(a)(4)(B) (emphasis supplied).

Chiaradio, 684 F.3d at 275. Thus, under § 2252A(a)(5)(B), the possession of multiple materials establishes multiple violations.

Thus, in U.S. v. Woerner, 709 F.3d 527 (5th Cir.2013), the Fifth Circuit addressed this issue under § 2252A(a)(5)(B) (which Movant was convicted of violating), and held that each different “material” (containing one or more images) was. a separate offense. “The allowable unit of prosecution for § 2252A(a)(5)(B) is each ‘material,’ or medium, containing an image of child pornography.” Woerner, 709 F.3d at 540. In that case, two separate convictions were sustained based upon possession of a computer and a flash drive, each containing images.

Woerner was founded upon the Fifth Circuit’s analysis in U.S. v. Planck, 493 F.3d 501, 504 (5th Cir.2007) (“where a defendant has images stored in separate materials (as defined in 18 U.S.C. § 2252A), such as a computer, a book, and a magazine, the Government may charge multiple counts, each for the type of material or media possessed”). In U.S. v. Schales, 546 F.3d 965 (9th Cir.2008), the Ninth Circuit cited Planck approvingly.

Here each